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Opinion Contributor

Obama’s drone policy misreading international law

Due to the difficulty of identifying the enemy, different rules apply, the author says. | AP Photo

By DAPHNE EVIATAR | 5/3/12 12:07 AM EDT

White House Counterterrorism Adviser John Brennan’s speech on targeted killings Monday has largely been hailed for its unprecedented openness about the U.S. use of unmanned aerial vehicles, or drones, to kill suspected terrorists around the world. Given that the U.S. government has never formally acknowledged even having a targeted killing program, that’s not saying quite a lot.

In fact, though Brennan left out many important details, he did say more than other administration officials have in the past. And at least some of what he said suggests that Washington has adopted an interpretation of its right to use drones to target suspected terrorists that is dead wrong on the law.

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“In this armed conflict, individuals who are part of Al Qaeda or its associated forces are legitimate military targets,” Brennan said Monday at the Woodrow Wilson Center. “We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”

Actually, no. The U.S. war against Al Qaeda and “associated forces” isn’t like the U.S. war against Germany and Japan during World War II. Al Qaeda and its associates don’t wear uniforms and don’t fight on behalf of any state.

Though international law recognizes that a state may go to war against armed terrorist groups, that’s called a “non-international armed conflict.” Because of the difficulty of identifying the enemy, different rules apply.

In a non-international armed conflict like this, the only “enemies” targetable are those “directly participating in hostilities” against the United States, or performing a “continuous combat function” with armed groups targeting the U.S.

Not every member of Al Qaeda or “associated forces” meets that criteria. A cook, dishwasher or doctor aiding Al Qaeda fighters may well be a “member” of Al Qaeda — yet not be lawfully targetable. Brennan, speaking on behalf of the Obama administration, ignored that fact.

The result is that the Obama administration is claiming the authority to target — and may well be targeting — individuals (and groups, in its “signature strikes,” which Brennan did not address) not legally targetable under international law. (“Signature strikes” target groups of men believed associated with terrorists, based on observed patterns of activity — even though their individual identities may be unknown.)

This is not a mere legal technicality. True, a court may never force the U.S. government to change its policy. But by announcing a legal interpretation that stretches way beyond the accepted boundaries of international law, the Obama administration has essentially granted license to other countries to do the same. They can now declare members of groups they deem enemies to be targetable by drones, wherever they may be found — including in the United States.

Brennan acknowledged Monday that while the United States is the first nation to regularly conduct strikes using remotely piloted aircraft, it won’t be the last.

Even the most technologically advanced “precision” strikes can cause innocent civilian casualties.

That’s a problem which Americans may quickly realize could hit home.

Daphne Eviatar is a senior cousel in the law and security program of Human Rights First.

Last year a flag officer mentioned to me that President Obama is writing the rule book on how UAV's (drones ) can be used. And he wonders if Obama realises that in the very near future, everyone will have their own UAV's including rouge nations, warlords in Africa and terrorist organizations.

How Obama is using UAV's today is telling everyone else in the world how they can use their UAV's in the same way.

If a wanted criminal fugitive from a foreign country is walking the streets of America as a free man because there's no extradition treaty between that country and the USA. By using the rules Obama has established, that country can send one of it's UAV's over the USA and take out that wanted fugitive as he's waiting for a bus at a bus stop.

What most Americans are unaware of, that almost every time we take out an Al Qaeda target using UAV's there is collateral damage of innocent civilians being killed.

Obama claims to be a law scholar, but his track record with the Supreme Court doesn't look like it's going to be that good.

For almost forty years the Republicans have been arguing that the War Powers Act was unconstitutional. The Democrats said it wasn't. Well President Obama has settled that argument for everyone when he waged war against Libya. No other future POTUS has to obey the War Powers Act, Obama made that decision for them.

Starting to wonder about this Obama guy when it comes to the law and the Constitution. I would really like to see his college transcripts.

I have no problems of using UAV's to take out our enemies. But I have a bigger problem when we aren't capturing some of our enemies to gather intelligence. Since Obama been POTUS, not one top Al Qaeda member has been captured ! The CIA said intelligence on Al Qaeda is drying up.During the Bush administration we captured hundreds of high value Al Qaeda members. How do you think we located the where abouts of bin Laden ? It wasn't from any Al Qaeda captured during the Obama administration because none have been captured.

(“Signature strikes” target groups of men believed associated with terrorists, based on observed patterns of activity — even though their individual identities may be unknown.)

Reading this could very well apply to illegal aliens that enter America in groups along with other terrorist groups crossing our borders. Many Americans have died at the hands of illegal aliens.

"That’s a problem which Americans may quickly realize could hit home." I believe it already has.

Drop houses are every where in Arizona. Americans body count from illegal aliens is large and no one cares about the numbers of Americans dead at the hands of the illegal aliens. Or do we just care about Americans dying at the hands of Al Qaeda?

What about the "members of Al Qaeda" already here in America are we going to hit them with drones?

As I understand it we have drones on our borders, are we going to kill Americans trying to kill terrorist with these drones.

Article IV, Section 4 of the Constitution guarantees protection against invasion. But yet we are not being protected against this kind of invasion.

According to our government we are going thousands of miles away to protect America while at the same time we have wide open borders. Double standards is our government at work.

When hasn't Obama been wrong on the law? Obamacare, Arizona vs. US, numerous 'recess' appointments, presidential orders, etc, etc, etc. He just doesn't stop taking powers that do not belong to the executive branch, and encourages the Dems in the legislature along the same lines. Then he goes and intimidates the Supreme Court that they had better agree with him? This man either does not understand the separation of power and system of checks and balances, or he deliberately abuses it to shift our entire system of government.

So, Obama believes that waterboarding is torture, but sending drones to wipe out the suspect, regardless if he is a U.S. citizen, and anyone around him, is fair play. Typical of all of his other logic.